Archive for category Indian Law

Clinton Speaks at University of New Mexico Sandoval Conference

10/22/2013
Robert N. Clinton

Robert N. Clinton, Foundation Professor of Law, recently spoke at the University of New Mexico School of Law, for a conference commemorating United States v. Sandoval.

The conference, “One Century Later: Federal Authority in Indian Country, Indian Identity and Status and the Rights of Defendants in Tribal Court,” explored the decision, litigation, aftermath and impact of United States v. Sandoval, which granted federal Indian statutes to the Pueblo people.

Clinton spoke on a panel titled “Sandoval’s Impact on Federal Authority in Indian Country.”

Clinton teaches and writes about federal Indian law, tribal law, Native American history, constitutional law, federal courts, cyberspace law, copyrights, and civil procedure. His publications include numerous articles on federal Indian law and policy, constitutional law, and federal jurisdiction. He is the co-author of casebooks on Indian law and federal courts, The Handbook of Federal Indian Law (1982 ed.) and multiple editions of American Indian Law: Native Nations and the Federal System, Colonial and American Indian. He also is a Faculty Fellow in the Center for Law, Science & Innovation.

Hopi Appellate Court Reaffirms Village Sovereignty

Following up on its earlier Bacavi decision, the Hopi Appellate Court issued a decision on September 10, 2013 interpreting the Hopi Constitution in Duwahoyeoma v. Hopi Tribe, No. 2012-AP-0002. Specifically, the Court reaffirmed the aboriginal sovereignty of the separate Hopi and Tewa villages that formed the basis of its Bacavi decision and held in Duwahoyeoma that Article III, Section 3 of the Hopi Constitution reserved exclusive jurisdiction to the respective Hopi and Tewa Villages to determine how they would be governed and, consequently, that this provision precluded the Hopi Courts from deciding purely internal village disputes as to the form of governance or the legitimacy of Kikmongwi or other traditional religious leaders. The Court did note, however, that the Hopi courts can interpret the Hopi Constitution and otherwise review claims involving the decisions of the Tribal Council or other administrative officers even though such decisions may implicate questions of village governance. Invoking the latter jurisdiction, the Hopi Appellate Court further found that the provision of Article III, Section 3 of the Hopi Constitution that provides that traditional Villages “shall be considered as being under the traditional Hopi organization, and the Kikmongwi of such village shall be recognized as its leader” did not mandate or require the Kikmongwi to serve as the daily governing authority of any Village, but, merely, recognized his traditional role as leader and spokesman for the Village, a role akin to head of state, to communicate village policy or decisions to the Tribal Council, other Villages, or other parties. Finally, the Court interpreted Article III, Section 4 of the Hopi Constitution, which authorizes in certain circumstances the calling of an election run by the United States Department of the Interior Superintendent to change the form of Village government, to not curtail or eliminate preexisting Village sovereignty to change forms of government by other means that do not involve the federal government. Thus, the Court concluded that when Article III, Section 4 stated that Villages “may” use the described federally supervised election procedure, it provided one, but not the only, means of accomplishing Village governmental change but did not indicate that Villages must use that procedure as the exclusive means of making such governance changes. The full opinion is available here.

Professor Clinton Interviewed on Baby Veronica Case

Professor Clinton was interviewed about the Baby Veronica ICWA case that the Supreme Court heard yesterday on Due Diligence.

A copy of the radio interview is located at:

http://voicerussia.com/radio_broadcast/58461461/110989204.html.

Robert Clinton Interviewed on AZ-TV on Tohono O’odham Casino Proposal

AZTV7/Cable 13, Me-TV 7.2, HSN 7.3, Phoenix-Prescott, AZ

Code of Indian Offenses

Chief Sitting Bull For years scholars have described the Code of Indian Offenses, first adopted by the federal government in 1883, as a reservation criminal code designed to cover lesser misdemeanors. The Code of Indian Offenses helped create the Courts of Indian Offenses, which at their height imposed on perhaps two-thirds of the nation’s Indian reservations a federally dominated western style court composed of tribal members picked by and responsible to the federal Superintendent of the Reservation. The few surviving Courts of Indian Offenses, many of which are Oklahoma, are now known as CFR Codes. The Code also helped establish the Indian Police, also composed of tribal members selected, paid, and supervised by the federal Superintendent of the Reservation. Perhaps the most notorious act of the Indian Police involved their murder of Tatanka Iyotake (Sitting Bull — pictured above) the great Hunkpapa Lakota holy man and leader in 1890 at Standing Rock as a result of federal concerns over his support for the religious revitalization Ghost Dance movement among the Lakota. Clearly, the Courts of Indian Offenses and the Indian Police involved efforts by the federal government to substitute a federally controlled western style colonial government for the traditional governance structures and leadership of the tribes. A good summary of that effort is found in William T. Hagan, Indian Police and Judges: Experiments in Acculturation and Control (1966).

Considerably less attention has been paid to the actual content of the Code of Indian Offenses. About a decade and half ago, my efforts to locate the original copy paid off. When I received it, I was startled to discover that very little of the Code of Indian Offenses actually dealt with matters which would be classically regarded as crimes in western societies then or today. In fact, most of the Code of Indian Offenses was directly aimed at outlawing Indian culture. Thus, the practice of medicine men, Indian dances, the giving of gifts to compensate and honor a family for the a daughter given in marriage, potlaches and other traditional reciprocal gift-giving, polygamy and other Indian customary practices were all made punishable offenses by the Code of Indian Offenses. In fact, the reference to other misdemeanors was the last item listed and the one to which the least attention was paid.

Also remarkable were the penalties prescribed in the Code of Indian Offenses. By the time of the Code of Indian Offenses was promulgated most of the nomadic plains tribes had been corralled onto reservations, early examples of internment or concentration camps. Their traditional hunting lifestyles had been effectively destroyed by such confinement, as well as the deliberate federally sponsored eradication of the buffalo (bison) on which they depended. This forced change in tribal economies resulted in the nation’s first welfare state, in which the tribal members became completely dependent on federal rations (the development of Indian frybread being the most obvious and long lasting by-product of this change in subsistence habits). In this context, the penalty prescribed by the Code of Indian Offenses for practicing traditional and customary ways often involved the denial of rations. Thus, the federal government’s message to tribal Indians in the late nineteenth century was crystal clear — abandon your traditional culture and comply with the Code of Indian Offenses or starve. The Code of Indian Offenses therefore was not an early criminal code for Indian Reservations, as it is sometimes portrayed, but, rather, the clearest evidence of a deliberate federal policy of ethnocide — the deliberate extermination of another culture.

The shocking evidence of such federal ethnocide is found in the federal government’s own words in the original Code of Indian Offenses. Because of the difficulty I originally had in locating it, I have chosen to publish it to the internet here.

The Code of Indian Offenses was finally amended when John Collier assumed the role of Commissioner of Indian Affairs in the administration of President Franklin D. Roosevelt in 1933. He eliminated all references to the bans on dances, such as the sacred Lakota Sun Dance, and other customary Indian practices. The modern incarnation of the Code of Indian Offenses is found at 25 C.F.R. Part 11 and it, unlike the original version, does provide a basic criminal code for lesser crimes committed by Indians on reservations covered by these provisions.

IGRA 20th Anniversary Conference — October 16-17, 2008

ILP HeaderSDO Logo 

The Indian Legal Program at the Sandra Day O’Connor College of Law at Arizona State University, American Indian Policy Institute at ASU, American Indian Law Center, Inc., Native Nations Law and Policy Center at University of California, Los Angeles, National Congress of American Indians, National Indian Gaming Association, Arizona Indian Gaming Association, and the New Mexico Indian Gaming Association are pleased to announce a conference to commemorate and celebrate the twentieth anniversary of the enactment of the Indian Gaming Regulatory Act. The Conference entitled Indian Country’s Winning Hand: 20 Years of IGRA will be held on October 16-17, 2008 at the Ft McDowell Yavapai Nation’s Radisson Fort McDowell Resort & Casino in Scottsdale/Fountain Hills, Arizona.

CONFERENCE AGENDA

 

Thursday, October 16, 2008

 

7:00 – 8:00 am Registration

8:00 – 8:45 am Welcome and Introduction

8:45 – 10:20 am A History of the Indian Gaming Regulatory Act

10:20 – 10:45 am Break

10:45 – 12:15 pm Federal Implementation of IGRA: The National Indian Gaming Commission, the Bureau of Indian Affairs and the Department of Justice

12:15 – 2:00 pm Keynote Luncheon

2:00 – 3:30 pm Class III Gaming Compacts and the Impact of Indian Gaming on TribalState Relations

3:30 – 3:50 pm Break

3:50 – 5:30 pm Class III Gaming Compacts and the Impact of Indian Gaming on TribalState Relations

 

6:30 – 8:30 pm Pathbreaker’s Banquet (Courtyard Plaza)

 

Friday, October 17, 2008

 

7:30 – 8:30 am Check-In

8:30 – 10:00 am The Economic Impacts of Indian Gaming

10:00 – 10:20 am Break

10:20 – 12:15 pm Indian Gaming’s Impact on the Tribes

12:15 – 2:00 pm Keynote Luncheon

2:00 – 3:15 pm Indian Gaming and the Federal Tribal Relationship

3:15 – 3:30 pm Break

3:30 – 5:30 pm Where Does Indian Gaming Go From Here?

 

Confirmed Speakers: (listed alphabetically)

  • Allison Binney (tentative)

  • Dr. Eddie Brown

  • Robert N. Clinton

  • Philip S. Deloria

  • Howard Dickstein, Esq.

  • Franklin Ducheneaux

  • Eric D. Eberhard

  • Larry Echohawk

  • Shawn Ellis

  • Diane G. Enos

  • Franklin Ettawageshik

  • Glenn M. Feldman

  • Matthew L.M. Fletcher

  • Thomas F. Gede

  • Carole E. Goldberg

  • Kevin Gover

  • Stephen M. Hart

  • Jacqueline Johnson

  • Joseph P. Kalt

  • Dan Kolkey

  • Thomas L. LeClaire

  • Steven Andrew Light

  • Arlinda Locklear

  • Michael Lombardi

  • Deron Marquez

  • Heidi McNeil Staudenmaier

  • Kathryn R.L. Rand

  • G. William Rice

  • Fawn Sharp

  • Jim Shore (tentative)

  • Alexander Tallchief Skibine

  • George Skibine

  • Kate Spilde Contreras. Ph. D.

  • Jonathan Taylor

  • Rebecca Tsosie

  • Mark Van Norman

  • Kevin Washburn

  • Richard West

  • Dr. Peterson Zah

Others who have been or are being invited,

not yet confirmed.

Carl J. Artman

Raphael Bear

Melanie Benjamin

Joe A. Garcia

Philip N. Hogen

Mark Macarro

 

Richard M. Milanovich

Raymond G. Sanchez

Ernest L. Stevens, Jr.

Kimberly Teehee

Minor Correction to Ward Churchill Report

The following correction has just been posted on the Inside Higher Education website. The original can be viewed at http://www.insidehighered.com/news/2007/08/09/qt:

The members of the investigative committee that explored allegations of research misconduct against Ward Churchill have unanimously adopted a statement that identifies one misstatement in their report, offers additional language to fix that mistake, and clarifies that the changes in no way relate to their conclusions about Churchill, who has since been fired by the University of Colorado. While the members all agreed on the statement, only three of them agreed to its release to Inside Higher Ed. Their names appear at the end of the statement.

The statement reads:

The undersigned were members of the Investigative Committee appointed by the University of Colorado at Boulder in December, 2005 to consider allegations of research misconduct against Professor Ward Churchill. The full text of our lengthy report can be found at:
http://www.colorado.edu/news/reports/churchill/download/WardChurchillReport.pdf

Although our tenure as members of that committee ended when we submitted our report in May, 2006, we feel an obligation as scholars to correct one sentence in that report. On page 34, an incomplete sentence resulted in an inaccurate statement. The relevant sentence reads, “The pages referenced by Professor Churchill in the Salisbury book do not contain the words ‘Wampanoags’ and have no discussion of any disease or epidemic (including smallpox).”

That sentence should have read, “The pages referenced by Professor Churchill in the Salisbury book do not contain the words ‘Wampanoags’ and have no discussion of any disease or epidemic (including smallpox) spread by John Smith or attributed by Salisbury to Smith’s 1614 visit to the area.” We were obviously aware of Salisbury’s discussion of the epidemic(s) that struck in 1616-18: subsequent pages of our report refer to his account of those outbreaks of disease.

When the error in the sentence on p. 34 was pointed out to us in spring, 2007, Professor Wesson announced the correction in a letter to the University of Colorado’s official paper, Silver and Gold Record, published on 12 April 2007; she asked also that it be communicated to the university officials considering Professor Churchill’s case. Now that the university has completed its deliberations, we want to ensure that the correction is drawn to the attention of the wider scholarly community.

Although our report’s description of these pages in Salisbury’s work was inaccurate, we took into account during our deliberations the actual contents of the pages in question and those surrounding them. This correction therefore does not change any of our findings about research misconduct with respect to the specific allegation it concerned or any of the other allegations.

Thank you for allowing us to correct the record.

Robert N. Clinton, Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University

José E. Limón, Director, Center for Mexican-American Studies and Mody C. Boatright Regents Professor of American and English Literature, University of Texas at Austin

Michael L. Radelet, Professor and Chair, Department of Sociology, University of Colorado at Boulder

Race, Citizenship, and the Cherokee Nation

American racism has deep roots and persistent effects. Its most recent manifestation occurred when an overwhelming majority (76%) of the Cherokee Nation of Oklahoma voted to amend their new tribal constitution to require for the first time a degree of Indian blood for enrollment as a citizen (member) of the Nation. The fact that it was the Cherokee Nation that graphically demonstrated the long-lasting vestigial effects of white American racism is truly sad and ironic.

Prior to their removal from the ancestral aboriginal homelands in Georgia, North Carolina and Tennessee on the horrendous Trail of Tears, the Cherokees both influenced southern plantation culture in significant ways and were also significantly influenced by it. One of the most troubling aspects of that cross-cultural influence involved adoption by some Cherokees of plantation farming culture together with slavery. While history suggests that the Cherokee experience with slave holding was nowhere near as brutal as that suffered by slaves held by their white neighbors, the experience nevertheless was dehumanizing. That history gives lie to the notion that slavery uniquely constituted a white imposition on colored peoples and that “people of color” were incapable of such discrimination. Many of the Cherokees’ slaves suffered the same indignities as their “masters” when they were forcibly removed with the Cherokees on the Trail of Tears to the Indian Territory. The fact that some members of the Cherokee Nation continued slavery in the Indian Territory led portions of the Nation to side and fight with the Confederacy during the Civil War. In fact the last Confederate battalion to surrender during the Civil War was the batallion of Cherokees, Seminoles and Osages led by Brigadier General Stand Watie (Degata or Stand Firm), a noted and controversial Cherokee leader, who surrendered months after Lee had capitulated at Appomattox.

Traditional Cherokee notions of clan and kinship originally influenced their sense of identity. Those traditions were continued in nineteenth century Cherokee written law which provided that anyone, including a white or black person, married to a member of the Cherokee Nation and residing in their territory was a voting citizen of the Nation, even after divorce or death of the Cherokee spouse, so long as the individual did not remarry outside the tribe. These laws provided a challenge to nineteenth century white racism and in United States v. Rogers (1846), the United States Supreme Court held that a white citizen of the Cherokee Nation under these laws was not an Indian for federal Indian law purposes. Rather than deferring to the tribal definition of citizenship, the Court essentially held that a white by blood was always white, irrespective of the tribal legal view of the matter. Thus, the Cherokee customary view of tribal identity initially did not requite Indian blood; instead it required Indian kinship which could be acquired by birth, marriage, or adoption.

White racial attitudes, however, did focus on blood and ancestry and they ultimately infected the manner in which even the Cherokees viewed their basic national identity. Following the Civil War the slaveholding tribes of the southeast, by then mostly removed to the Indian Territory (today’s eastern Oklahoma), were forced to sign separate treaties with the United States in which they agreed to grant full citizenship to their former slaves, their freedmen, irrespective of any Indian blood. Thus, Article 9 of the Treaty of Washington D.C. with the Cherokee Nation signed in 1866 expressly required that “all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees.”

While the political guarantees of the 1866 Treaty were initially implemented in the Cherokee Nation, since the late nineteenth century, the Cherokee Nation ceased keeping separate freedmen’s rolls and, notwithstanding the this express treaty guarantee have since then denied to many descendents of the Cherokee freedmen basic political rights of Cherokee citizenship, including the right to enroll and the right to vote, guaranteed by Article 9. In so doing, the Cherokee Nation clearly abandoned their traditional nonracial approach to citizenship and increasingly adopted the American racist sense of their identity that surrounded them. In fact, it seems no accident that the Cherokee Nation ceased recognizing the political rights of the Cherokee freedmen at about the same time the United States Supreme Court ushered in “separate but equal” with its decision in Plessy v. Ferguson (1896).

This collision of race, citizenship and identity recently came to a head in the Cherokee Nation as Lucy Allen sought through litigation to vindicate the guarantee of full Cherokee citizenship promised her ancestors in Article 9 of the 1866 Treaty. In Allen v. Cherokee Nation (2006), the Cherokee Nation Judicial Appeals Tribunal held in a 2-1 decision that the membership rules of the Cherokee Constitution and laws did not require any degree of Cherokee blood and that descents of Cherokee freedmen were entitled to be enrolled as full citizens in the Nation by virtue of the 1866 Treaty despite almost a century of tribal noncompliance.

Principal Chief Chad Smith immediately reacted negatively to the ruling and sponsored a constitutional amendment to assure, quite contrary to the traditional Cherokee sense of identity but consistent with its more recent racist behavior, that Cherokee membership required evidence of Cherokee blood, thereby again marginalizing the Cherokee freedmen. Obviously, Chad Smith’s proposal constituted nothing short of a deliberate decision to break the obligations assumed by the Cherokee Nation in 1866 Treaty, an odd position for a tribe that has often asserted its own treaty rights.

Earlier this month, the Cherokee Nation voted in a referendum to limit citizenship in the Cherokee Nation to persons of Cherokee blood. Most of the descendants of the Cherokee freedmen had not yet been enrolled and therefore could no participate in the referendum. The vote indicated that 76% of the voters favored moving from a race neutral to a racial definition of Cherokee citizenship in great part to exclude the descendents of the Cherokee freedmen who, of course, are of African-American descent. Since over 2,000 Cherokee freedmen descents had enrolled, the practical effect of the vote was to revoke the Cherokee citizenship of over 2,000 people and to deny future enrollment to others who could prove Cherokee freedmen descent. Answering a question asked by Chief Justice Stacy Leeds in the Allen litigation as to whether the Cherokee Nation was a political tribe or a race, the people of the Cherokee Nation voted overwhelmingly in favor of race. Since the Cherokee Nation did not begin as a people who culturally drew racial classifications as part of the determining tribal identity, the fact that three-fourths of the tribe now calculates its identity in purely racial terms speaks volumes about the ability of long-standing American racism to virally infect, contaminate and alter the sense of identity of others, including the victims of racial discrimination.

The vote of the Cherokee Nation earlier this month to break its 1866 Treaty with the United States and to formally adopt a racial definition of Cherokee citizenship that requires blood quantum raises a fascinating question about the appropriate response of the federal government. Clearly, as a result of the recent Cherokee referendum, many thousands of people who should have been entitled to citizenship in the Cherokee Nation under Article 9 of the 1866 Treaty will now be disenfranchised and many thousand more will be denied the opportunity to enroll. These events are only the most recent and most visible test of how and whether the federal government should react to internal tribal decisions about membership that disenroll members of the tribe who previously were thought to be lawfully entitled to tribal citizenship. In most instances, the disenrolled are of the same race and ethnicity as those who remained. In this case, however, the disenrolled are primarily African-American and those remaining have some degree of Indian blood, specifically Cherokee blood. This mix of race and tribal membership attracted considerably more public attention than the other tribal disenrollment disputes that are simmering around the country.

When the white government of South Africa disenfranchised and relegated to second class citizenship its black citizens under the guise of apartheid, the international community and, more particularly, the United States government took action to assure that equal political rights were given to all. Economic and cultural embargoes and the refusal to recognize or deal with the white apartheid government ultimately ended human rights abuses in South Africa and returned political control to a democratic state in which all South Africans had the right to participate equally. While Indian tribes no doubt have the same sovereign right to determine their own citizenship that South Africa does, their sovereign authority to do so does not and should not insulate them from either criticism or adverse political action by the federal government when they make decisions that disenfranchise or expel portions of their tribe, particularly when they do so strictly on the basis of race. The United States is a party to the 1866 Treaty and, just like any Indian tribe, has a right to insist that its treaty rights be honored. Cutting off federal assistance or refusing to recognize or deal with any government of the Cherokee Nation of Oklahoma elected under the citizenship rules just adopted by Cherokee voters might be major steps the federal government could take to demonstrate that racism is no more acceptable when undertaken by Cherokee voters than when adopted by Southern legislatures a half-century ago in de jure segregation statutes. Only time will tell whether the federal government has the same will and patience to end abuses of basic human political rights by Indian tribes in the same way it did in South Africa. The response of the United States government to this challenge will speak volumes about whether it really has developed a mature government-to-government relationship with the Indian tribes, as it frequently claims.

 

Ward Churchill Report

A large portion of my activities during the spring 2006 semester were taken up serving as one of two outside members on the University of Colorado Investigatory Committee Regarding Allegations of Research Misconduct by Ward Churchill. The final report of that committee can be found here and, we hope, largely speaks for itself.

Indigenous Treaties: A Comparative New Zealand/United States Perspective

Today, I delivered a talk entitled Indigeneous Treaties: A Comparative New Zealand/United States Peespective in which I jusxtaposed the treatment of the Treaty of Waitangi of 1840 with the Maori in New Zealand with the treatment of American Indian treaties in the United States. A copy of the talk can be secured in Acrobat format by clicking on the title of the talk above. Comments or criticisms by email would be appreciated.